Google is taking on the FBI by challenging a National Security Letter that demanded a user’s private data. The Mountain View giant petitioned the court to “set aside legal process” on March 29. The petition was filed under seal in San Francisco with the same U.S. District Court Judge Susan Illston who recently ruled (pdf) that NSLs coming with a gag order are unconstitutional.
Just a few weeks ago, on behalf of a telecommunications company, the EFF had challenged the constitutionality of NSLs that come with a gag order . . . 97% of them are delivered with that stipulation. On March 14, Judge Illston ruled that the NSL gag order requirements “significantly infringe on speech regarding controversial government powers.” Such NSLs "violate the First Amendment and separation of powers principles." She further ordered the FBI to stop issuing NSLs and to stop enforcing the gag provision “in this or any other case." Her decision was stayed for 90 days in order to give the Justice Department an opportunity to appeal.
Last month, on March 5, Google published a new transparency report that disclosed a summary range of 0 – 999 NSLs it had received from the FBI for each year from 2009 to 2012. Google Legal Director Richard Salgado wrote, "Our users trust Google with a lot of very important data, whether it’s emails, photos, documents, posts or videos. We work exceptionally hard to keep that information safe." He explained:
When conducting national security investigations, the U.S. Federal Bureau of Investigation can issue a National Security Letter (NSL) to obtain identifying information about a subscriber from telephone and Internet companies. The FBI has the authority to prohibit companies from talking about these requests. But we’ve been trying to find a way to provide more information about the NSLs we get—particularly as people have voiced concerns about the increase in their use since 9/11.
It was a bold move and the first time a company released such data. By deciding to fight an NSL, Google takes another big first in the fight for users’ rights and a move against government secrecy.
Google filed a petition to set aside a “legal process” pursuant “to 18 U.S.C. Section 3511 (a) and (b),” according to a March 29 filing in federal court in San Francisco seeking a court order to seal its request. Petitions “filed under Section 3511 of Title 18 to set aside legal process issued under Section 2709 of Title 18 must be filed under seal because Section 2709 prohibits disclosure of the legal process,” Kevan Fornasero, Google’s lawyer, said in the filing.
Marc Rotenberg, president and executive director EPIC, told Bloomberg, “We are in this interesting in-between moment in which the government is still able to enforce its authority. I suspect that this filing is an effort to push the issue further.”
In the past, very few entities have challenged NSLs. Calyx Institute Founder Nick Merrill did on behalf of a small ISP; after fighting the Patriot Act and winning, Merrill has promised privacy when he launches a surveillance-free ISP. The librarians also challenged an NSL as did an “unknown tech company” last year. In fact, of the 300,000 NSLs issued since 2000, “only four or five recipients have challenged the letters.” EFF attorney Matt Zimmerman said, “The people who are in the best position to challenge the practice are people like Google.”
Neither the FBI, nor Google have publicly commented yet on the NSL fight.